On this page we outline the responsibilities universities have to ensure students can access education free from harassment and discrimination (including sexual harassment).
- Legal obligations
- The Equality Act (2010)
- University regulation
- Barriers to universities meeting their responsibilities
- What can universities do to meet their responsibilities?
If you’re looking to create change at your university, the following information can help you make a strong case for change.
Staff should refer to the relevant university or employment policy, such as their contracts, for information on their employer’s duty of care to employees.
British universities are public bodies, which means they are under legal obligation to ensure that students can access education free from harassment and discrimination (including sexual); they are under a duty of care to staff and students.
McAllister Olivarius, equality and discrimination law firm, have supported many students at UK universities who have experienced sexual misconduct. They note that the legal obligations from universities to students include:
- Common law
- Health and safety
- Data protection and confidentiality law
- Human Rights Act (1998)
- The Equality Act (2010)
The relationship between universities and students is contractual. Students are recognised as consumers under consumer law. The disciplinary processes students are entitled to (such as an internal investigation by the university) can be seen within the context of this relationship.
The Equality Act (2010)
Under this Act, universities have a public sector equality duty to eliminate discrimination on the grounds of ‘protected characteristics.’
Section 75 of the Northern Ireland Act 1998 places similar responsibilities on universities in Northern Ireland.
Protected characteristics include:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
Under this duty, university policies and procedures should not have a discriminatory effect – including those that deal with sexual misconduct incidents.
McAllister Olivarius have utilised the Equality Act and the Human Rights Act for students where their complaints of sexual misconduct have been mishandled by the university and note: “if universities are not providing a complaints process which complainants feel safe using, they are not working towards the elimination of discrimination… We contend this breaches the Equality Act.”
- The Office for Students (OfS) is the regulatory body for universities in England. They have a Statement of Expectations which supports universities in England to prevent and respond to sexual misconduct.
Although not mandated, universities in England are expected to show the change they have made in response to the OfS expectations, particularly if they have not met the expectations.
- Universities in Scotland are regulated by the Scottish Funding Council. The Equally Safe Violence Against Women and Girls Strategy and ESHE toolkit also supports Scottish universities in tackling sexual misconduct.
- Universities in Wales are regulated by the Higher Education Funding Council for Wales (HEFCW).
- Universities in Northern Ireland are regulated by the Department for the Economy.
- UK Higher Education Sector Guidance from Universities UK (UUK) provides recommendations to UK universities to support them to tackle violence against women and hate crimes. UUK is a collective of 140 universities throughout the UK.
- Changing the Culture: one year on (2018) is another report from UUK assessing strategies to tackle sexual misconduct and hate crimes at university.
What are the barriers to universities meeting their responsibilities?
McAllister Olivarius explain that the process of sexual misconduct complaints generally put the accused at an advantage over the complainant.
Disputes are often handled as between the university and the accused, meaning the complainant is often not ‘party’ to the investigation. This can mean that they’re not shown evidence, or told the outcome of their complaint. This can be incredibly traumatising for survivors who have decided to go through a hostile investigation process.
Furthermore, the problematic use of non-disclosure agreements (NDAs) by universities means that some survivors of sexual misconduct are not allowed to discuss the incident publicly.
A BBC Freedom of Information request shows that 300 NDAs have been used by 136 UK universities since 2016 against students, and a total of £1.3 million paid out to complainants. Testimonies from students who have used NDAs indicate that they can be re-traumatising and a very distressing process.
It’s possible that the use of NDAs means that universities do not necessarily comply with public sector equality duty. See McAllister Olivarius for more information on this.
AVA’s Vice Chancellor’s Toolkit (2021) highlights that the reputational damage that comes with sexual misconduct cases can be a cause of concern for universities. However, sexual misconduct is common in universities, as it is throughout society, and universities have a responsibility to protect and adequately support staff and students.
What can universities do to meet their responsibilities?
Sexual misconduct is a society-wide problem, and universities cannot always stop sexual misconduct from happening. However, there are tangible steps they can take to ensure they are tackling sexual misconduct and ensuring survivors have access to adequate reporting and support systems.